[co-author: Conor Johnston]

The Court of Appeal has held that right to rent checks are not unlawful under the Human Rights Act, reversing a decision of the High Court. The Court held that the scheme was a “proportionate means of achieving its legitimate objective”, and was therefore justified. However its finding that the scheme has caused some discrimination is likely to have significant political ramifications and will lead some to call for its abolition.

The right to rent requirements were brought into force in England in February 2016 under the 2014 Immigration Act, but have not yet been implemented in Scotland, Wales or Northern Ireland.

In March last year, the High Court found that right to rent checks cause discrimination on grounds of race and nationality and breach the Human Rights Act. The High Court felt that the scheme could not be justified as “the measures have a disproportionately discriminatory effect” and, on the evidence, “the scheme has had little or no effect” in tackling illegal residence.

In considering this issue, the Court of Appeal expressed difficulty with the assessment of whether or not there was discrimination. Ultimately the Court concluded that those who do have a right to rent, but not a British passport, were subject to some discrimination on the basis of their nationality and this was caused by the scheme.

However the Court stressed that this discrimination is not a rational or logical outcome of the scheme, and noted the evidence which indicates that over half of all landlords do not discriminate in this way. Discrimination was not a logical or inevitable result of the scheme.

This played a role in the judges’ determination of whether the scheme could be justified. Ultimately, the Court held that the scheme was a “proportionate means of achieving its legitimate objective”, and was therefore justified.

The right to rent scheme requires all private landlords to check the immigration status of a tenant or lodger, to ensure they can legally rent a residential property in England. The policy also affects commercial landlords if, for example, they let residential flats over retail units. In practice, landlords generally pass on responsibility for rent checks to letting agents, but this needs to be clearly agreed as part of the landlord’s contract with the agent.

The checks must be carried out before the start of a tenancy, on all people aged 18 or over who will live at the property as their main home, whether they are named in the tenancy agreement or not. Certain types of property, such as social housing, some student accommodation, and leases of seven years or more of any residential property, are exempt. Landlords can be fined up to £3,000 or face criminal charges for acting in contravention of the scheme.

While the challenge cast some doubt over the scheme’s legality, it is now clear that right to rent checks are here to stay, unless the government bows to mounting political pressure. In a statement made following the judgment, the Home Secretary Priti Patel stated the government was, “carefully reviewing and reflecting on the recommendations in the Lessons Learned Review report, including those relating to the compliant environment”. This is bound to gather traction given the Court found the scheme had caused some discrimination. Indeed, the government has promised to “continue to work with landlords and lettings agents to ensure that the scheme is operated in a lawful way”. We now wait to see whether a final appeal will be made to the Supreme Court.

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